Mr Anthony McCarthy v HW Martin Waste Ltd — 2021

The tribunal found that Mr McCarthy made a qualifying and protected disclosure on 20 November 2019 when he spoke to Andrea Wain and then emailed her about concerns that MB was taking drugs at work, driving a 360 machine while under the influence, and making violent statements. It held that the disclosure conveyed information within section 43B ERA 1996, that Mr McCarthy reasonably believed the matters tended to show criminal offending and a danger to health and safety, and that the disclosure was made in the public interest. Although Ms Wain worked for Premier, the tribunal found that she was acting with managerial authority within the group structure, so the disclosure was treated as one to the claimant's employer within section 43C.

The tribunal found that Donna Jolley and Tony Burnett deliberately did nothing with the November 2019 complaint. It rejected Ms Jolley's account that she had actioned it or passed it on, found that she had withheld the email from Robin Akers in the appeal process, and drew adverse inferences from the absence of Mr Burnett, Mr White and Mr Akers as witnesses. It held that the failure to respond was itself a detriment and that it also helped create the environment in which MB's conduct towards Mr McCarthy escalated. The tribunal further found that from about 8 February 2020 MB targeted Mr McCarthy, including remarks about needing to get rid of a 'snake in the camp', changing his hours, accusing him over trailer damage, and alleging he had failed to deal with waste removal.

On the grievance and appeal, the tribunal found that Mr White did not investigate the substance of the allegations about MB and drug-taking, and that Mr Akers similarly failed to address those matters on appeal. It found that none of the grievances against MB were upheld, but that the handling of the grievance and appeal were themselves detriments because the protected disclosure materially influenced the Respondent's conduct. The tribunal also held that the later targeting by MB from February 2020 was motivated by the disclosure, after Mr Burnett had told MB something about the Esity issue and the complaint.

On remedy, the tribunal accepted the agreed financial loss caused by the sick leave beginning on 26 February 2020 and made no reduction for contributory conduct. It awarded compensation at the higher end of the middle Vento band for the distress and anxiety caused, recording that the relevant band for a June 2020 claim was £9,000 to £27,000. The final award was £25,342.50, made up of financial loss and £20,000 for injury to feelings.